Six-Chart Sunday – Courting Controversy: SCOTUS Vacancy in 2026?

6 Infographics + 1 Video (Marco in Munich)

What to get the year that already has everything? How about a Supreme Court vacancy?! Will there be one in 2026??? What would a confirmation confrontation mean for the 2026 agenda, midterms & future Court jurisprudence?

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1. SCOTUS Vacancies Are the Norm for New Administrations

8 of the past 10 Presidents have had at least one Supreme Court opening in the first 2 years of their term. 12 of the last 19 confirmations came in the first two years of a Presidential term.

2. Why a Vacancy May Be Coming: Trump Legacy

President Trump clearly cares about his legacy and likes setting new records / making history / outpacing predecessors (see e.g. most executive orders since FDR, “largest tax cuts in history,” “ending eight unendable wars in 10 months," renaming the Kennedy Center & Dulles Airport, building the White House ballroom, etc). Right now he’s in a 7-way tie for 13th most Supreme Court Justices appointed. But two more and he’s tied with Lincoln for 4th.

3. Why a Vacancy May Be Coming: Midterm Concerns

2026 could be Trump’s last opportunity to shape the Court. None of the past four two-term Presidents held the Senate in their final two years. While odds-makers favor the GOP retaining control in the midterms, Democrats’ chances keep improving. Democrats would need to run the table — defend three open seats while winning five Trump 2024 states including at least two Trump won by double-digits — a very tall order. (Recall Republicans lost the House in Trump’s first midterm in 2018 but gained two Senate seats that same election). But if the Democrats do capture control of the Senate in 2026, there’s a 0% chance they’d confirm a fourth Trump Supreme Court justice regardless of when the vacancy occurs (see Garland, Merrick).

4. Why a Vacancy Is Less Likely: No One Wants to Leave & They’re (Relatively) Young

Supreme Court vacancies occur when Justices choose to retire or die in office. They cannot be fired by the President. So far none of the sitting Justices have indicated a desire to depart, and all are well-below the average age of departing modern Justices (79.3 since 1970). On May 7, 2026, Clarence Thomas — the oldest current Justice at 77 — will become the second-longest serving in Court history (12,614 days), with only 745 more days needed to exceed William O. Douglas’ record for longest. The President may not be the only one with eyes on the history books.

5. Why a Vacancy Is Less Likely: Oldest Justices Are Most Reliable Trump Allies

Another reason the President may resist pushing Justices to step down is that the two oldest Republicans — Clarence Thomas & Samuel Alito — are among his most reliable votes on the Court. And while the President retains massive sway with Congressional GOP, his ability to demand fealty on future nominations may be diminishing. Retiring Senators (McConnell, Tillis & Ernst)… more independent Republicans (Collins, Murkowski, Young)… and Senators who may lose primaries due to lack of Trump support (Cornyn, Cassidy)… are a lot less likely to support an unqualified nominee just because the President insists.

6. Potential Drag on 2026 Legislating

Supreme Court confirmations are major distractions and partisan flash-points inhibiting compromise elsewhere. They suck up a lot of Senate time and political oxygen, limiting space for the myriad other issues lawmakers hope to address. While all Congresses pass more laws in their second year than in their first, a nomination (especially a controversial one) would likely slow things down substantially.

SO WHAT: The most critical question may be the hardest to know… which party would a nomination fight advantage in the midterms? Research published in 2020 suggests GOP candidates benefit more from increased voter enthusiasm and turnout driven by nomination fights (e.g. “Kavanaugh effect”), but one wonders whether the 2022 Dobbs decision changes this calculus.

VIDEO

Secretary of State Rubio spoke at the same Munich Security Conference where VP Vance “shocked” attendees last year. But “[w]hile Mr. Vance’s speech was met with stony silence, Mr. Rubio’s address prompted bouts of applause and laughter, and drew a brief standing ovation.” (NYT) Their core message overlapped significantly, but differences in tone & timing mattered mightily. Rubio:

We are bound to one another by the deepest bonds that nations could share, forged by centuries of shared history, Christian faith, culture, heritage, language, ancestry, and the sacrifices our forefathers made together for the common civilization to which we have fallen heir.

…if at times we disagree, our disagreements come from our profound sense of concern about a Europe with which we are connected – not just economically, not just militarily. We are connected spiritually and we are connected culturally. We want Europe to be strong.